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State v. Fortin

May 12, 2009

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
STEVEN R. FORTIN, DEFENDANT-RESPONDENT.



On appeal from the Superior Court, Appellate Division, whose opinion is reported at 400 N.J. Super. 434 (2008).

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

In this appeal, the Court determines whether the application to defendant of a recent amendment to N.J.S.A. 2C:11-3, which eliminated the death penalty and imposed a sentence of life without parole for certain murders, violates the Ex Post Facto Clause of the United States and New Jersey Constitutions.

In 1995, defendant was indicted for capital murder and other offenses committed in 1994. At that time, a person convicted of capital murder would be subject to the death penalty if the jury found beyond a reasonable doubt that one or more statutory aggravating factors were present, and that the aggravating factors outweighed the mitigating factors. Otherwise, the maximum sentence was life with a thirty-year parole disqualifier. In 2001, following the guilt phase portion of defendant's trial, the jury convicted defendant of capital murder. At the penalty phase, the jury unanimously found that the aggravating factors outweighed the mitigating factors, and the court sentenced defendant to death. In 2004, the New Jersey Supreme Court reversed defendant's convictions and remanded for a new trial. The Court also addressed an ex post facto issue because in 2000, prior to the first trial, the Legislature adopted a law that allowed for a sentence of life without parole in certain capital cases. The Court concluded that application of the amendment to defendant would be unconstitutional unless he waived his rights under the Ex Post Facto Clause.

Defendant was tried again and convicted of capital murder. In December 2007, prior to the penalty phase of the trial, the Legislature amended the murder statute to eliminate the death penalty. Under the amended law, a defendant will receive a sentence of life without parole if the State demonstrates beyond a reasonable doubt that a statutory aggravating factor is present. The amended statute does not permit a defendant to present mitigating factors.

In January 2008, the State filed a motion to sentence defendant under the amended law to life without parole. The trial court denied the motion, finding that life without parole is a more serious punishment than life with a thirty-year parole disqualifier, and that it would be unconstitutional to sentence defendant under the new law unless he waived his ex post facto protections. The Appellate Division affirmed on different grounds. State v. Fortin, 400 N.J. Super. 434 (2008). It held that the constitutional infringement was the elimination of defendant's right to present mitigating factors in the penalty phase, which resulted in a procedural change to his detriment. The court mentioned, but opted not to consider, the remedy of preserving the former death penalty complex, with the presentation of both aggravating and mitigating factors, and then approving a life-without-parole sentence if the jury found that defendant would have qualified for a death sentence. The Supreme Court granted leave to appeal. 196 N.J. 340 (2008).

HELD: Because defendant had prior notice of the former statute's death penalty procedures, there is no impediment to proceeding to the penalty phase under the former statute. If the jury concludes that the State has proven beyond a reasonable doubt that the aggravating factors outweigh the mitigating factors, rendering defendant subject to a death sentence under the former law, then imposing a life-without-parole sentence under the new law would not violate the Ex Post Facto Clause. If the jury finds in favor of a non-death sentence, defendant must be sentenced under the law as it existed at the time of the offense, to a term of thirty years to life with a thirty-year parole disqualifier.

1. The United States and New Jersey Constitutions forbid ex post facto laws. The purpose of the Ex Post Facto Clause is to assure that legislative acts give fair warning of their effect. A criminal law is ex post facto if it (1) applies to events that occurred before its enactment and (2) disadvantages the offender affected by it. For example, the United States Supreme Court held that a law that imposed a mandatory fifteen-year term for a crime, when fifteen years was the maximum term when it was committed, was unconstitutional as applied. (pp. 9-12)

2. The first element of an ex post facto law is satisfied here because the Legislature intended to retroactively apply the amended sentencing statute to defendants who committed crimes before 2007. Regarding the second element, defendant argues that because the death penalty has been eliminated, the new statute disadvantages him by eliminating the thirty-year parole disqualifier. The State argues that life without parole is less serious than death, and thus, the new law is not more onerous than the former statute. (pp. 12-13)

3. The amended statute imposes a mandatory life-without-parole sentence under certain circumstances, whereas the law in effect at the time of the crime provided for a sentence of either death or a term of thirty years to life with a thirty-year parole disqualifier. Considering only the non-death sentences, life without parole is a greater sentence than thirty years to life with a thirty-year parole disqualifier. Thus, if the jury had concluded that defendant should receive a non-death sentence under the former statute, then application of the new law to him would violate the Ex Post Facto Clause. Nevertheless, there would be no constitutional impediment to imposing the new law if the trial had reached the penalty phase under the former statute and the jury found that the aggravating factors outweighed the mitigating factors. In that event, defendant would have been subject to death under the former law, and a life-without-parole term under the amended statute would be a less severe sentence. (pp.13-14)

4. The Legislature provided procedures for defendants previously sentenced to death who want the benefit of a life-without-parole sentence. It did not expressly provide for individuals who, like defendant, committed murder while the former statute was in effect but had not yet reached the penalty phase of trial when the law was amended. This case does not require an "all or nothing" approach concerning application of the Ex Post Facto Clause. The Court should interpret the law in a manner that would avoid constitutional infirmities if it can fairly do so. (pp. 14-15)

5. If the Legislature had considered this issue, it would have maintained the penalty phase procedures under the prior statute for a determination of whether defendant was subject to a death sentence. The State should proceed to the penalty phase as if the Legislature had not amended the law. If the jury finds that the aggravating factors outweigh the mitigating factors, rendering defendant subject to a death sentence, then there is no ex post facto violation in applying the amended statute's life-without-parole sentence because that would be less severe than death. However, if the jury finds in favor of a non-death sentence, then application of the new law would violate the Ex Post Facto Clause because a sentence of life without parole would be greater than the maximum non-death sentence allowed at the time of the offense: life with a thirty-year parole disqualifier. (pp. 15-16)

6. Subjecting defendant to the former statute's penalty proceedings does not result in a lack of fair warning. In Dobbert v. Florida, 432 U.S. 282 (1977), the United States Supreme Court rejected an argument that the state could not seek the death penalty under a new statute because the death penalty statute in effect at the time of a murder was declared unconstitutional. The Court found compliance with the Ex Post Facto Clause because the death penalty statute at the time of the offense served to warn the defendant of the penalty he would face if he were convicted of murder. That reasoning applies with even greater force here. The death penalty statute existing at the time defendant committed the crimes and at the time of his guilt phase trial provided ample notice to defendant that the State would seek to impose a sentence of death. (pp. 16-18)

7. The Court adopts a hybrid procedure to best preserve the Legislature's goal in amending the statute. Because defendant had prior notice of the former statute's death penalty procedures, there is no impediment to proceeding to the penalty phase under the former law. If the jury finds beyond a reasonable doubt that the aggravating factors outweigh the mitigating factors, then a life-without-parole sentence under the amended statute would not violate the Ex Post Facto Clause. If the jury rejects the State's position, defendant must be sentenced under the former statute as it existed at the time of the offense, to a term of thirty years to life with a thirty-year parole disqualifier. (pp. 18-19)

The judgment of the Appellate Division is AFFIRMED IN PART and REVERSED IN PART, and the matter is REMANDED to the trial court for further proceedings consistent with the Court's opinion.

JUSTICE ALBIN, DISSENTING, joined by JUSTICE LONG, is of the opinion that application of the amended statute, which allows the imposition of a more severe mandatory minimum sentence than the law allowed before defendant committed the crime, violates the Ex Post Facto Clause.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, RIVERA-SOTO and HOENS join in JUSTICE WALLACE's opinion. JUSTICE ALBIN, joined by JUSTICE LONG, filed a separate, dissenting opinion.

The opinion of the court was delivered by: Justice Wallace, Jr.

Argued January 20, 2009

The issue in this appeal is whether the application to defendant of a recent amendment to N.J.S.A. 2C:11-3, which eliminated the death penalty and imposed a sentence of life without parole for certain murders, violates the Ex Post Facto Clause of the United States and New Jersey Constitutions. In 1995, defendant was charged with a capital murder committed the previous year. He subsequently was convicted and, in 2001, a jury found him subject to the death penalty. In defendant's direct appeal, this Court reversed and remanded for a new trial. At his retrial in 2007, defendant again was found guilty of capital murder. However, prior to the scheduled penalty phase of the trial, the Legislature amended the relevant statute and imposed a mandatory life-without-parole sentence in place of the death penalty. Thus, if the jury had decided that the State met its burden to impose a death sentence on defendant, the new law would require the imposition of a sentence of life without parole. The State filed a motion seeking to have the trial court sentence defendant under the amended statute to life without parole.

The trial court denied the State's motion. It concluded that application of the life-without-parole sentence would violate the Ex Post Facto Clause of the state and federal constitutions because at the time of the offense, the maximum non-death sentence that could have been imposed was life with a thirty-year parole disqualifier. The Appellate Division granted the State's motion for leave to appeal and affirmed. We now affirm in part and reverse in part.

I.

We briefly outline the facts and procedural history that are set forth at length in State v. Fortin, 178 N.J. 540, 559-568 (2004) (Fortin II).

On August 11, 1994, defendant sexually assaulted and murdered Melissa Padilla. Her body was discovered in a concrete pipe along Route 1 in Woodbridge Township, badly battered and stripped naked from the waist down. At the time of the attack, the evidence found at the scene did not connect defendant to the murder. In April 1995, defendant was apprehended in Maine for the sexual assault of a Maine State Trooper. After Woodbridge police detectives became aware of the parallels between the two crimes, they traveled to Maine to interview defendant. Evidence from the Maine attack ultimately was used to implicate defendant in Padilla's murder.

On September 6, 1995, a Middlesex County grand jury indicted defendant for capital murder, N.J.S.A. 2C:11-3a(1), (2); two counts of felony murder, N.J.S.A. 2C:11-3a(3); first-degree robbery, N.J.S.A. 2C:15-1; and first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a. At the time of the offense, a defendant convicted of capital murder would be subject to the death penalty if the jury found that the State had proven beyond a reasonable doubt that: (1) one or more statutory aggravating factors were present; and (2) the aggravating factors outweighed the mitigating factors. Fortin II, supra, 178 N.J. at 598-99; N.J.S.A. 2C:11-3c(2), ...


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